Order Designating Certain Excluded Classes of Projects: SOR/2025-60

Canada Gazette, Part II, Volume 159, Number 6

Registration
SOR/2025-60 February 28, 2025

IMPACT ASSESSMENT ACT

Whereas the Minister of the Environment is of the opinion that the carrying out of a project under one of the designated classes of projects under the annexed Order will cause only insignificant adverse environmental effects;

And whereas, under subsection 89(2) of the Impact Assessment Act footnote a, that Minister has considered the comments received from the public in deciding whether to make the designation;

Therefore, the Minister of the Environment makes the annexed Order Designating Certain Excluded Classes of Projects under subsection 88(1) of the Impact Assessment Act footnote a.

Ottawa, February 27, 2025

Steven Guilbeault
Minister of the Environment

Order Designating Certain Excluded Classes of Projects

Interpretation

Definitions

1 The following definitions apply in this Order.

Act
means the Impact Assessment Act. (Loi)
allied petroleum product
has the same meaning as in section 1 of the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations. (produit apparenté)
building
means a roofed physical work and includes a moveable accommodation. (bâtiment)
developed
with respect to land means that it is permanently altered from its natural state for human use or is landscaped and maintained for human use. (aménagé)
expansion
means an increase in the exterior dimensions or the production capacity of a physical work. (agrandissement)
hook-up
means a structure or line that is used to connect a physical work to a main gas, oil, sewer, water, power or telecommunication line. (raccordement)
modification
means an alteration to a physical work that does not alter the purpose or function of the work but does not include an expansion or relocation. (modification)
petroleum product
has the same meaning as in section 1 of the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations. (produit pétrolier)
water body
includes a lake, canal, reservoir, ocean, river and its tributaries, and wetland, up to the annual high-water mark, but does not include a ditch that does not contain fish habitat as defined in subsection 2(1) of the Fisheries Act, a sewage or waste treatment lagoon, a mine tailings pond, an artificial irrigation pond or a dugout. (plan d’eau)
wetland
means an estuary, tidal flat, marsh, swamp, bog, fen or other land where the presence of water has caused the formation of hydric soils and favoured the dominance of hydrophytic or water-tolerant plants. (terres humides)

Interpretation

2 Any reference to a physical work in this Order includes the systems and equipment required for the operation of a physical work including communication, electrical, heating, fire-prevention, plumbing or security systems and equipment but not including systems and equipment that produce goods or energy primarily for any purpose other than the operation of the physical work.

Designated Classes of Projects

Federal lands or lands outside of Canada

3 (1) Subject to subsections (2) and (3), the classes of projects that are set out in Schedule 1 and carried out on federal lands or lands outside Canada are designated under section 88 of the Act.

Lands administered by Parks Canada Agency

(2) The classes of projects that are set out in Schedule 2 and carried out on federal lands administered by the Parks Canada Agency are designated under section 88 of the Act.

Wildlife Area Regulations

(3) The classes of projects that are set out in Schedule 3 and carried out in areas referred to in Schedule I of the Wildlife Area Regulations are designated under section 88 of the Act.

Exceptions

4 The classes of projects set out in Schedules 1 to 3 do not include projects that

Transitional Provision

Transitional provision

5 A designation of classes of projects that is in progress on the day on which this Order comes into force will continue according to the criteria established in the Designated Classes of Projects Order.

Repeal

6 The Designated Classes of Projects Order footnote 1 is repealed.

Coming into Force

Registration

7 This Order comes into force on the day on which it is registered.

SCHEDULE 1

(Subsection 3(1) and section 4)

Classes of Projects Carried out on Federal Lands or Lands Outside Canada

PART 1
Non-specific Classes

1 The operation, maintenance or repair of any physical work, whether or not the physical work is referred to in this Schedule

2 Any physical activity that is carried out entirely within the interior of a building

3 (1) The construction of any well used to conduct geotechnical, environmental or scientific investigations but not including projects that involve the placement of temporary or permanent fill in a water body

(2) The decommissioning of any well referred to in subsection (1)

4 The construction, installation, expansion, modification, decommissioning, removal, replacement or moving of a physical work that has a footprint of no more than 25 m2 and that is not otherwise referred to in this Schedule, not including any project that involves

5 The construction, installation, expansion, modification, decommissioning, removal, replacement or moving of an in-water structure that has a footprint of no more than 10 m2 and that is not otherwise referred to in this Schedule, not including any project that involves

PART 2
Building Classes

Interpretation and Application

6 In this Part, special purpose building means a residential accommodation building, a hospital, a health centre, a fire, paramedic or police station, an educational institution, a recreational, artistic, cultural or sporting facility or a community or religious centre.

7 The classes of projects described in sections 9 to 11 do not include any project that involves

8 This Part applies to any building, special purpose building, prefabricated structure or tent pad.

Physical Works — Developed Land

9 (1) On developed land, the construction, installation, decommissioning, removal, replacement, moving or demolition of

(2) On developed land, the construction, installation, decommissioning, removal, replacement or moving of

(3) On developed land, the expansion of any building, special purpose building, prefabricated structure or tent pad, provided that the total footprint of all expansions of that physical work is no more than 1000 m2

Physical Works — Land That is not Developed

10 (1) On land that is not developed, the construction, installation, decommissioning, removal, replacement or moving of

(2) On land that is not developed, the expansion of any building, special purpose building, prefabricated structure or tent pad, provided that the total footprint of all expansions of that physical work is no more than 100 m2

11 The modification of any building, special purpose building, prefabricated structure or tent pad

PART 3
Physical Works or Related Physical Works

Interpretation and Application

12 In this Part, physical work means

13 The classes of projects described in sections 15 to 17 do not include any project that involves

14 A physical work is a related physical work when it refers to a physical work that is related to an existing building or other structure.

Physical Works — Developed Land

15 (1) On developed land, the construction, installation or moving of any related physical work that has a footprint of no more than 1000 m2

(2) On developed land, the expansion of any related physical work provided that the total footprint of all expansions of that physical work is no more than 1000 m2

(3) On developed land, the decommissioning, removal or replacement of any physical work that has a footprint of no more than 1000 m2

Physical Works — Land That Is Not Developed

16 (1) On land that is not developed, the construction, installation or moving of any related physical work for which the footprint is no more than 100 m2

(2) On land that is not developed, the expansion of any related physical work, provided that the total footprint of all expansions of that physical work is no more than 100 m2

(3) On land that is not developed, the decommissioning, removal or replacement of any physical work that has a footprint of no more than 100 m2

17 The modification of any physical work or related physical work

PART 4
Utility Infrastructure

Application

18 This Part applies to any hydrant, hook-up, water-related utility infrastructure — other than a water pipeline or water treatment facility — septic system, water treatment facility, utility infrastructure set out in section 23 or electrical substation.

19 (1) The classes of projects described in sections 20 to 22 do not include any project that involves

(2) The class of projects described in section 21 does not include any project that involves the use of

Hydrants and Hook-ups

20 The installation, modification, decommissioning, abandonment, removal or replacement of a hydrant or hook-up that is part of a utility distribution system

Water-related Utility Infrastructure

21 (1) The construction or installation of any water-related utility infrastructure that has a footprint of no more than 100 m2

(2) The expansion of any water-related utility infrastructure referred to in subsection (1), provided that expansion does not increase the total footprint of that water-related infrastructure to more than the limit set out in that subsection

(3) The decommissioning, removal or replacement of any water-related utility infrastructure that has a footprint of no more than 1000 m2

(4) The modification of any water-related utility infrastructure that has a footprint of no more than 1000 m2

(5) The modification of a water treatment facility

22 (1) On developed land, the installation, expansion, removal or replacement of a septic system that has a footprint of no more than 1000 m2 and that is located more than 30 m from a water body

(2) The modification of any septic system

Interpretation

23 For the purposes of sections 25 to 29, utility infrastructure means

24 (1) The classes of projects described in sections 25 to 29 do not include any project that involves

(2) The classes of projects described in sections 27 to 29 do not include any project for which the electrical transmission or distribution line referred to in paragraph 23(g) is located

Utility Infrastructure

25 (1) The construction or installation of any utility infrastructure referred to in paragraph 23(a), (f) or (g) that is no more than 100 m in length

(2) The lengthening of any utility infrastructure referred to in subsection (1) if the length of the utility infrastructure and the lengthening is no more than 100 m

(3) The modification, decommissioning, removal or replacement of any utility infrastructure referred to in paragraph 23(a), (f) or (g) that is no more than 1000 m

(4) The construction, installation, lengthening, modification, decommissioning, removal or replacement of any utility infrastructure referred to in paragraph 23(a), (f) or (g), of any length, that is located

26 (1) The modification, removal or replacement, more than 30 m from a water body, of any utility infrastructure referred to in any of paragraphs 23(b) to (e) that is no more than 1000 m in length

(2) The construction, installation, lengthening, modification, abandonment, removal or replacement, more than 30 m from a water body, of any utility infrastructure referred to in any of paragraphs 23(b) to (e), of any length, that is located

Electrical Substations

27 (1) On developed land, the construction, installation, decommissioning, removal or replacement of an electrical substation that has a footprint of no more than 1000 m2 and that is linked to an electrical transmission or distribution line referred to in paragraph 23(g)

(2) On developed land, the expansion of an electrical substation referred to in subsection (1), provided that expansion does not increase the total footprint of that electrical substation to more than the limit set out in that subsection

28 (1) On land that is not developed, the construction or installation of an electrical substation that has a footprint of no more than 100 m2 and that is linked to an electrical transmission or distribution line referred to in paragraph 23(g)

(2) On land that is not developed, the expansion of an electrical substation referred to in subsection (1), provided that expansion does not increase the total footprint of that electrical substation to more than the limit set out in that subsection

29 The modification of any electrical substation that is linked to an electrical transmission or distribution line referred to in paragraph 23(g)

PART 5
Storage Tank Systems

Application

30 The classes of projects described in sections 32 and 33 do not include any project that involves the disturbance of known or suspected subsurface contamination, unless the project is located within a site that is classified as closed in the Federal Contaminated Sites Inventory but not including sites closed that require risk management measures.

31 This Part applies to any storage tank system for petroleum products or allied petroleum products.

Storage

32 (1) The installation, removal or replacement of a storage tank system for petroleum products or allied petroleum products that has an aggregate capacity of

(2) The increase of the capacity of a storage tank system referred to in subsection (1), provided that increase does not exceed the aggregate capacity limit set out in that subsection

33 The modification of any storage tank system for petroleum products or allied petroleum products

PART 6
Linear Infrastructures

Interpretation and Application

34 In this Part, linear infrastructure means

35 The classes of projects described in sections 37 to 40 do not include any project that involves

36 This Part applies to any linear infrastructure.

Aerodromes

37 (1) The decommissioning, removal or replacement of any linear infrastructure referred to in paragraph 34(a) that is no more than 150 m in length

(2) The lengthening of any linear infrastructure referred to in paragraph 34(a), if the lengthening is no more than 150 m and does not increase the aircraft group number that the linear infrastructure can service

(3) The modification of any linear infrastructure referred to in paragraph 34(a)

Railway Lines

38 (1) The decommissioning, removal or replacement of any linear infrastructure referred to in paragraph 34(b) that is no more than 100 m in length

(2) On developed land, the lengthening of any linear infrastructure referred to in paragraph 34(b) that is within or runs alongside an existing railway or road right of way, if the lengthening is no more than 100 m

(3) The modification of any linear infrastructure referred to in paragraph 34(b)

Roads

39 (1) The decommissioning, removal, or replacement of a linear infrastructure referred to in paragraph 34(c) that is no more than 100 m in length

(2) On developed land, the lengthening or widening of any linear infrastructure referred to in paragraph 34(c) that is within or runs alongside an existing rail or road right of way, if the lengthening is no more than 100 m and the widening is by one lane of no more than 100 m

(3) The modification of any linear infrastructure referred to in paragraph 34(c)

Security Infrastructures

40 (1) The construction or installation of any linear infrastructure referred to in paragraph 34(d) that is related to a building or other structure and that is no more than 100 m in length

(2) The lengthening of any linear infrastructure referred to in paragraph 34(d), if the lengthening is no more than 100 m in length

(3) The modification, decommissioning, removal or replacement of any linear infrastructure referred to in paragraph 34(d)

PART 7
Transportation and Mobility Projects

Application

41 (1) The classes of projects described in sections 43 to 49 do not include any project that involves

(2) The classes of projects described in sections 44 and 47 do not include any project that involves

42 This Part applies to any air transportation navigational aid, clear span bridge, sidewalk, boardwalk, path or trail.

Transportation — Developed Land

43 (1) On developed land, the construction, installation, decommissioning, removal or replacement of an air transportation navigational aid that has a footprint of no more than 1000 m2

(2) On developed land, the expansion of any air transportation navigational aid, provided that the total footprint of all expansions of that physical work is no more than 1000 m2

44 (1) On developed land, the construction or installation of a clear span bridge that is related to a building or structure and that has a footprint of no more than 1000 m2

(2) On developed land, the expansion of a clear span bridge referred to in subsection (1), provided that expansion does not increase the total footprint of that clear span bridge to more than the limit set out in that subsection

(3) On developed land, the decommissioning, removal or replacement of a clear span bridge that has a footprint of no more than 1000 m2

Mobility — Developed Land

45 (1) On developed land, the construction or installation of a sidewalk, boardwalk, path or trail that is related to a building or other structure and that has a footprint of no more than 1000 m2

(2) On developed land, the expansion of any sidewalk, boardwalk, path or trail that is related to a building or other structure, provided that the total footprint of all expansions of that physical work is no more than 1000 m2

(3) On developed land, the decommissioning, removal or replacement of any sidewalk, boardwalk, path or trail that has a footprint of no more than 1000 m2

Transportation — Land That Is Not Developed

46 (1) On land that is not developed, the construction, installation, decommissioning, removal or replacement of an air transportation navigational aid that has a footprint of no more than 100 m2

(2) On land that is not developed, the expansion of any air transportation navigational aid, provided that the total footprint of all expansions of that physical work is no more than 100 m2

47 (1) On land that is not developed, the construction or installation of a clear span bridge that is related to a building or structure and that has a footprint of no more than 100 m2

(2) On land that is not developed, the expansion of a clear span bridge referred to in subsection (1), provided that expansion does not increase the total footprint of that clear span bridge to more than the limit set out in that subsection

(3) On land that is not developed, the decommissioning, removal or replacement of a clear span bridge that has a footprint of no more than 100 m2

Mobility — Land That Is Not Developed

48 (1) On land that is not developed, the construction or installation of any sidewalk, boardwalk, path or trail that is related to a building or structure and that has a footprint of no more than 100 m2

(2) On land that is not developed, the expansion of any sidewalk, boardwalk, path or trail that is related to a building or other structure, provided that the total footprint of all expansions of that physical work is no more than 100 m2

(3) On land that is not developed, the decommissioning, removal or replacement of any sidewalk, boardwalk, path or trail that has a footprint of no more than 100 m2

49 The modification of any air transportation navigational aid, clear span bridge, sidewalk, boardwalk, path or trail

PART 8
Structures in or Near Water

Interpretation Application

50 For the purposes of sections 52 and 55, other physical work means

51 (1) The classes of projects described in sections 53 to 57 do not include any project that involves

(2) The classes of projects described in subsections 56(1) and (2) and 57(1) and (2) do not include any project that involves placing or affixing legs or piles in the substrate or bed of a water body.

52 This Part applies to any culvert and any structure used for berthing or mooring, any hydrometric station, including any related personnel shelter and any marine navigation aid structure as well as any other physical work.

Culverts and Structures for Berthing or Mooring and Other Physical Works

53 The modification or replacement of a culvert that is located alongside or underneath a road, railway, airport pavement or trail, is not located in waters frequented by fish and does not involve activities below the annual high water mark

54 The modification, removal or replacement of a structure used for berthing or mooring that has a footprint of no more than 1000 m2

55 The modification or replacement of any other physical work that has a footprint of no more than 1000 m2

Hydrometric Stations and Marine Navigation Aid Structures

56 (1) The construction or installation of a hydrometric station that has a footprint of no more than 100 m2

(2) The expansion of any hydrometric station referred to in subsection (1), provided that expansion does not increase the total footprint of that hydrometric station to more than the limit set out in that subsection

(3) The modification, decommissioning, removal or replacement of any hydrometric station that has a footprint of no more than 1000 m2

57 (1) The construction or installation of a marine navigation aid structure that has a footprint of no more than 100 m2

(2) The expansion of any marine navigation aid structure referred to in subsection (1), provided that expansion does not increase the total footprint of that marine navigation aid structure to more than the limit set out in that subsection

(3) The modification, decommissioning, removal or replacement of any marine navigation aid structure that has a footprint of no more than 1000 m2

PART 9
Other Projects

Interpretation Application

58 For the purposes of sections 63, 66 and 67, other physical work means

59 (1) The classes of projects described in sections 61 to 67 do not include any project that involves

(2) The classes of projects described in sections 61 and 64 do not include any project that results in an antenna that reaches higher than 60 m above the ground.

60 This Part applies to any radio communication antenna or radar system, including any associated equipment, any scientific instrument, including its housing and enclosure, for the purpose of data collection and any other physical work.

Infrastructure — Developed Land

61 (1) On developed land, the construction, installation, decommissioning, removal or replacement of a radio communication antenna or radar system that has a footprint of no more than 1000 m2

(2) On developed land, the expansion of any radio communication antenna or radar system referred to in subsection (1), provided that expansion does not increase the total footprint of that radio communication antenna or radar system to more than the limit set out in that subsection

62 (1) On developed land, the construction, installation, decommissioning, removal or replacement of a scientific instrument that has a footprint of no more than 1000 m2

(2) On developed land, the expansion of any scientific instrument referred to in subsection (1), provided that expansion does not increase the total footprint of that scientific instrument to more than the limit set out in that subsection

63 (1) On developed land, the construction, installation, decommissioning, removal or replacement of any other physical work that has a footprint of no more than 1000 m2

(2) On developed land, the expansion of any other physical work, provided that the total footprint of all expansions of that other physical work is no more than 1000 m2

Infrastructure — Land That Is Not Developed

64 (1) On land that is not developed, the construction, installation, decommissioning, removal or replacement of a radio communication antenna or radar system that has a footprint of no more than 100 m2

(2) On land that is not developed, the expansion of a radio communication antenna or radar system referred to in subsection (1) provided that expansion does not increase the total footprint of that radio communication antenna or radar system to more than the limit set out in that subsection

65 (1) On land that is not developed, the construction, installation, decommissioning, removal or replacement of a scientific instrument that has a footprint of no more than 100 m2

(2) On land that is not developed, the expansion of any scientific instrument referred to in subsection (1), provided that expansion does not increase the total footprint of that scientific instrument to more than the limit set out in that subsection

66 (1) On land that is not developed, the construction, installation, decommissioning, removal or replacement of any other physical work that has a footprint of no more than 100 m2

(2) On land that is not developed, the expansion of any other physical work, provided that the total footprint of all expansions of that other physical work is no more than 100 m2

67 The modification of any radio communication antenna or radar system, scientific instrument or other physical work

SCHEDULE 2

(Subsection 3(2) and section 4)

Classes of Projects on Federal Lands Administered by Parks Canada Agency

Interpretation

1 The following definitions apply in this Schedule.

boathouse
means a structure, with or without walls, that is designed to shelter and store a boat. (remise Ă  bateau)
management plan
means, in respect of a national park, the management plan for that land that is tabled in each House of Parliament under subsection 32(1) of the Parks Canada Agency Act, subsection 11(1) of the Canada National Parks Act or subsection 9(1) of the Rouge National Urban Park Act. (plan directeur)
national park
includes a park and park reserve as those terms are defined in subsection 2(1) of the Canada National Parks Act. (parc national)

PART 1
Non-specific Classes

2 The operation or maintenance of any physical work, whether or not the physical work is referred to in this Schedule

3 Any physical activity that is carried out entirely within the interior of a building

4 The modification or repair of any roadway, highway or parkway or of any related infrastructure

5 The installation, modification, repair, decommissioning, removal or replacement of any prefabricated structure

6 The construction, installation, expansion, modification, repair, decommissioning, removal or replacement of any rudimentary campsite located within an existing rudimentary campground that does not involve the construction of a new toilet system or the use of heavy equipment

7 The construction, installation, expansion, modification, repair, decommissioning, removal or replacement of any tent pad or movable accommodation at a campground that does not involve

8 (1) The construction of any well used to conduct geotechnical, environmental or scientific investigations but not including any project that involves the placement of temporary or permanent fill in a water body

(2) The decommissioning of any well referred to in subsection (1)

9 The repair of any overhead or underground electrical transmission or distribution line or related infrastructure

10 The repair of an overhead or underground telecommunication line or related infrastructure

11 The expansion, modification, repair, decommissioning, removal or replacement of any trail that does not involve

12 The modification, removal or replacement of any above ground petroleum storage tank system for petroleum products or allied petroleum products that does not involve the removal of vegetation with heavy equipment

13 The modification, repair, decommissioning or removal of any shoreline stabilization work, wharf, pier, dock, boathouse, launch ramp or navigational aid that does not involve

14 The modification or repair of any causeway, fishway, fish ladder, retaining wall or breakwater that does not involve

15 The modification or repair of any wastewater treatment system that has a footprint of no more than 1000 m2

PART 2
Historic Canals and National Marine Conservation Areas

Interpretation Application

16 In this Part national marine conservation area includes a marine conservation area and reserve as those terms are defined in subsection 2(1) of the Canada National Marine Conservation Areas Act.

17 The classes of projects described in sections 19 to 21 do not include any project that involves

18 This Part applies to any physical work that is carried out within a historic canal as defined in section 2 of the Historic Canals Regulations or national marine conservation area.

Physical Works — Historic Canals and National Marine Conservation Areas

19 The modification or repair of any lock, dam or bridge

20 The installation, modification, repair, decommissioning, removal or replacement of any in-water anchoring system, hook-up, boat lift, marine railway, inland boat slip or mooring basin

21 The installation, modification, repair, removal, decommissioning or replacement of any shoreline stabilization work, wharf, pier, dock, boathouse, launch ramp or navigational aid

PART 3
National Parks, National Urban Parks and National Historic Sites

Application

22 The classes of projects described in sections 24 to 34 do not include any project that involves

23 (1) Subject to subsection (2), this Part applies to any physical work that is carried out on developed land that is accessible by road within a national historic site — which means a place that is commemorated under section 3 of the Historic Sites and Monuments Act and is administered by the Parks Canada Agency — national urban park, national park without zoning or an area of a national park that is zoned Zone IV or Zone V in accordance with the management plan.

(2) Any project that is carried out on developed land in the Town of Banff that is zoned Zone V in accordance with the management plan is subject to sections 30 to 34.

Physical Works — Developed Land

24 The installation, modification, repair, decommissioning, removal or replacement of any building or other structure

25 The modification, repair, decommissioning, removal or replacement of any campsite

26 The construction, installation, expansion, modification, repair, decommissioning, removal or replacement of any hook-up

27 The construction, installation, expansion, modification, repair, decommissioning, removal or replacement of any sidewalk, boardwalk, fence or railing

28 The decommissioning of any road, parking lot or pull-off

29 The construction of any building or other structure in a park community, as defined in subsection 2(1) of the Canada National Parks Act

Physical Works – Developed Land Within the Town of Banff

30 The modification, repair, decommissioning or removal of any building or other structure located within the Town of Banff

31 The repair, decommissioning or removal of any hook-up located within the Town of Banff

32 The repair, decommissioning or removal of any sidewalk, boardwalk, fence or railing located within the Town of Banff

33 The decommissioning of any road, parking lot or pull-off located within the Town of Banff

34 The modification, repair, decommissioning or removal of any recreational ground located within the Town of Banff

SCHEDULE 3

(Subsection 3(3) and section 4)

Classes of Projects Within an Area Referred to in Schedule I of the Wildlife Area Regulations

PART 1
Non-specific Classes

1 The operation, maintenance or repair of any physical work, including overhead or underground electrical transmission or distribution lines, whether or not the physical work is referred to in this Schedule

2 Any physical activity that is carried out entirely within the interior of a building

3 (1) The construction of any well used to conduct geotechnical, environmental or scientific investigations but not including any project that involves the placement of temporary or permanent fill in a water body

(2) The decommissioning of any well referred to in subsection (1)

PART 2
Building Classes

Application

4 The classes of projects described in sections 6 to 9 do not include any project that involves

5 This Part applies to any building located within an area referred to in Schedule I of the Wildlife Area Regulations.

Physical Works — Developed Land

6 On developed land, the construction, installation, decommissioning, removal, replacement, moving or demolition of any building that has a footprint of no more than 1000 m2

7 On developed land, the expansion of any building, provided that the total footprint of all expansions of that physical work is no more than 1000 m2

Physical Works — Land That Is Not Developed

8 (1) On land that is not developed, the construction or installation of any building that has a footprint of no more than 100 m2

(2) On land that is not developed, the expansion of any building, provided that the total footprint of all expansions of that physical work is no more than 100 m2

(3) On land that is not developed, the decommissioning, removal, replacement or moving of any physical work referred to in subsection (1), if the footprint is no more than 100 m2

9 The modification of any building

PART 3
Other Physical Works

Interpretation and Application

10 In this Part, other physical work means

11 The classes of projects described in sections 13 and 14 do not include any project that involves

12 This Part applies to any other physical work.

Physical Works — Developed Land

13 On developed land, the decommissioning, removal or replacement of any other physical work that has a footprint of no more than 1000 m2

Physical Works — Land that is not Developed

14 On land that is not developed, the decommissioning, removal or replacement of any other physical work that has a footprint of no more than 100 m2

PART 4
Utility Infrastructure

Application

15 (1) The classes of projects described in sections 17 to 19 do not include any project that involves

(2) The classes of projects described in section 17 do not include any project that involves the use of

16 This Part applies to any water-related utility infrastructure, other than a water pipeline or water treatment facility, as well as any water pipeline.

Water-related Utility Infrastructure

17 The decommissioning, removal or replacement of any water-related utility infrastructure that has a footprint of no more than 1000 m2

Water Pipelines

18 The decommissioning, removal or replacement of any water pipeline that is no more than 1000 m in length

19 The decommissioning, removal or replacement of any water pipeline, of any length, that is located

PART 5
Linear Infrastructures

Interpretation and Application

20 In this Part, linear infrastructure means

21 The classes of projects described in sections 23 and 24 do not include any project that involves

22 This Part applies to any linear infrastructure.

Linear Infrastructures

23 The decommissioning, removal or replacement of any linear infrastructure referred to in paragraph 20(a) that is no more than 100 m in length

24 (1) The construction or installation of any linear infrastructure referred to in paragraph 20(b) that is related to a building or other structure and that is no more than 100 m in length

(2) The lengthening of any linear infrastructure referred to in paragraph 20(b), if the lengthening is no more than 100 m in length

(3) The modification, decommissioning, removal or replacement of any linear infrastructure referred to in paragraph 20(b)

PART 6
Mobility Projects

Application

25 The classes of projects described in sections 27 to 29 do not include any project that involves

26 This part applies to any sidewalk, boardwalk, path or trail.

Mobility — Developed Land

27 (1) On developed land, the construction or installation of any sidewalk, boardwalk, path or trail that is related to a building or other structure and that has a footprint of no more than 1000 m2

(2) On developed land, the expansion of any sidewalk, boardwalk, path or trail that is related to a building or other structure, provided that the total footprint of all expansions of that physical work is no more than 1000 m2

(3) On developed land, the decommissioning, removal or replacement of any sidewalk, boardwalk, path or trail that has a footprint of no more than 1000 m2

Mobility — Land That Is Not Developed

28 (1) On land that is not developed, the construction or installation of any sidewalk, boardwalk, path or trail that is related to a building or other structure and that has a footprint of no more than 100 m2

(2) On land that is not developed, the expansion of any sidewalk, boardwalk, path or trail that is related to a building or other structure, provided that the total footprint of all expansions of that physical work is no more than 100 m2

(3) On land that is not developed, the decommissioning, removal or replacement of any sidewalk, boardwalk, path or trail that has a footprint of no more than 100 m2

29 The modification of any sidewalk, boardwalk, path or trail

PART 7
Structures in or Near Water

30 The modification or removal of any marine navigation aid structure or structure used for berthing or mooring that has a footprint of no more than 1000 m2 but not including any project that involves

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

The Impact Assessment Act (IAA) sets out requirements in relation to projects on federal lands or outside Canada (sections 81 to 91). Federal authorities and authorities set out in Schedule 4 of the IAA (authorities) have responsibilities in relation to

The IAA enables the Minister of the Environment (the Minister) to designate, by order, classes of projects that, if carried out, will cause only insignificant adverse environmental effects (section 88). The Designated Classes of Projects Order (the Ministerial Exclusion Order) came into force in 2019 and lists the most routine, straightforward, and low-risk projects. For these projects, authorities are excluded from the requirements under the IAA.

Authorities review large numbers of projects on federal lands and outside Canada. A portion of these projects have the potential for only insignificant adverse environmental effects yet were not excluded by the former Ministerial Exclusion Order, which was put in place in 2019. These minor projects included the installation of a flagpole at a federal building, or the replacement of a gate in a national wildlife area. Some projects also encompassed certain low-risk activities related to essential infrastructure such as water utilities and telecommunication lines, including on First Nations reserve lands, and projects that enhance safety, such as marine and air transport navigation aids, as well as projects that have environmental benefits, such as aquatic habitat restoration.

The changes to the Ministerial Exclusion Order expand the number of excluded project classes. The new classes are limited by size thresholds and other conditions that ensure that adverse environmental effects are insignificant. This enables these projects to proceed without delay, allowing resources to be directed towards the assessment of proposals with greater potential for adverse environmental effects.

Background

The IAA sets out an impact assessment process to serve as a planning tool for major projects that provides for public and Indigenous engagement, assessment of positive and negative project impacts, and focuses on prevention and mitigation of adverse effects in areas of federal jurisdiction. This process applies to those major projects, designated under the Physical Activities Regulations, which have the greatest potential for adverse effects in federal jurisdiction. For these designated projects, the Impact Assessment Agency of Canada (IAAC) is the lead organization responsible for the impact assessment process.

The IAA also sets out requirements relating to non-designated projects that take place on federal lands or outside Canada (sections 81 to 91). These requirements apply to a very broad range of projects, including the routine maintenance and repair of existing infrastructure, as well as larger undertakings including the construction of new buildings, bridges, energy generation and distribution infrastructure, and roads. For these projects, before taking an action or making a decision that would enable a project to proceed, authorities are responsible for undertaking a review under the IAA to determine whether the project is likely to cause significant adverse environmental effects.

Over 75 authorities are subject to these requirements and are responsible for implementing them. These authorities include federal departments, departmental corporations, agencies, Crown corporations, port and airport authorities and offshore boards. On average, approximately 1 000 projects are assessed by authorities each year. The IAAC is responsible for the legislation and regulations governing these provisions.

When authorities must determine whether a non-designated project on federal lands or outside Canada is likely to cause significant adverse environmental effects (sections 82 and 83), authorities must post on the Canadian Impact Assessment Registry (Registry) website a notice of their intent to make such a determination and invite the public to provide comments (subsection 86(1)). There is a minimum 30-day period between this notice of intent and the final notice setting out the determination (subsection 86(2)). In addition, authorities must consider a list of factors when making the determination, including the effects of a project on the section 35 rights of Indigenous peoples; mitigation measures that address significant adverse environmental effects; community knowledge and Indigenous knowledge provided with respect to the project; and comments from the public (section 84). If the authority determines that the project is likely to cause significant adverse environmental effects, the project is referred to the Governor in Council. The project will only be permitted to proceed if the Governor in Council determines its effects are justified in the circumstances.

All non-designated projects on federal lands or outside Canada are subject to these requirements; however, a subset of these projects have only a limited potential for environmental effects (e.g. replacing a lightbulb or painting a building). Subsection 88(1) of the IAA authorizes the Minister to designate classes of projects if, in the Minister’s opinion, the carrying out of the project that is part of any of those classes will cause only insignificant adverse environmental effects. These classes of projects with only insignificant adverse environmental effects are described in the schedules to the Ministerial Exclusion Order, according to their location. Each class of projects is also subject to class-specific limiting conditions (e.g. size thresholds), as well as general conditions that apply to all classes.

For a non-designated project on federal lands or outside Canada to be excluded from the requirements under sections 82 and 83 of the IAA, it must be described in a class of projects in one of the schedules, and it must meet all general conditions described in section 4 of the Ministerial Exclusion Order. For projects that meet these criteria, authorities are excluded from the requirements to determine whether the project is likely to cause significant adverse environmental effects (sections 82 and 83).

The current Ministerial Exclusion Order came into force in 2019 alongside the IAA, excluding a few dozen of the most common, routine and low-risk project classes, such as buildings no larger than 1 000 m2 on developed land, utility infrastructure including water pipelines, sewers, drains, and telecommunication lines in certain lower-risk locations, and the operation, maintenance, and repair of a physical work. With the experience gained since 2019, more classes of projects are proposed for exclusion from IAA requirements under the Ministerial Exclusion Order to more efficiently deliver on low-risk projects, and to allow resources to be focused on higher-risk projects.

The IAAC identified this initiative to propose changes to the Ministerial Exclusion Order through its Forward Regulatory Plan in 2020. Since then, the IAAC consulted with authorities, conducted extensive research, and held a public comment period to develop and refine the changes.

Objective

The changes to the Ministerial Exclusion Order increase the number of excluded classes of projects for which obligations under sections 82 and 83 of the IAA do not apply. These project classes include those that, in the Minister’s opinion, will cause only insignificant adverse environmental effects. The Ministerial Exclusion Order will increase efficiencies for authorities, ensuring that their resources are directed towards projects that benefit from project-specific assessment and public consultation.

Description

The changes to the Ministerial Exclusion Order involve repealing the Designated Classes of Projects Order and replacing it with the Order Designating Certain Excluded Classes of Projects. These changes exclude additional classes of projects, including through a new schedule, make small changes to existing classes, and make minor changes to the general conditions that apply to all classes of projects. The changes were carefully scoped to ensure that all classes of projects, if carried out, will cause only insignificant adverse environmental effects. The changes also add application and interpretation clauses throughout each schedule, and move the location of certain definitions. This simplifies the interpretation of the Ministerial Exclusion Order but extends its length. The schedules in the Ministerial Exclusion Order list the classes of projects for which authorities are excluded from the IAA requirements. Each class of projects consists of a set of physical activities (e.g. construction, installation, decommissioning) in relation to a physical work. Schedule 1 sets out classes of projects on federal lands, other than lands covered in the other two schedules, and lands outside Canada. Schedule 2 sets out classes of projects on federal lands that are administered by Parks Canada. Schedule 3 is a new list of classes of projects on federal lands within national wildlife areas managed by Environment and Climate Change Canada. In addition to the new schedule, the changes add to the list of classes in Schedules 1 and 2, and make clarifications to existing classes.

The following criteria were considered when determining whether a class of projects should be added to the Ministerial Exclusion Order:

For proposals that met the above criteria, the IAAC documented the environmental effects of each proposal across three key categories (these categories are established in the IAA definition of “environmental effects,” at section 81):

For proposals with the potential to cause adverse environmental effects, the significance of those environmental effects, taking into account effective and established mitigation measures, were characterized using five recognized significance criteria: magnitude, geographic extent, frequency, duration, and reversibility. The IAAC only retained proposals where the impacts were in the lowest category of each criterion: of negligible magnitude, small geographic extent, rare frequency, short duration and highly reversible.

Cumulative effects

The potential for cumulative effects caused by excluded projects was considered when developing the changes to the Ministerial Exclusion Order. Class-specific conditions (e.g. size thresholds, location and activity-based restrictions), as well as general conditions that apply before any project can be considered for exclusion, limit the potential for cumulative effects from projects excluded by the Ministerial Exclusion Order. Projects are ineligible for exclusion when they are located in certain sensitive areas (e.g. in a marine protected area), change important ecosystem components (e.g. water, fish habitat, migratory birds, or species at risk) or exceed a certain footprint area or length. The Ministerial Exclusion Order discourages new developments in undeveloped and other sensitive areas: size thresholds have been reduced for works that take place in or near water bodies or on undeveloped lands, and only a subset of classes may be excluded in national parks, national urban parks, national marine conservation areas, and national wildlife areas. In addition, no new construction or installation can be excluded for many classes of projects located in water (e.g. culverts, retaining walls). Finally, many projects are subject to the requirement that any new construction or installation must be related to existing buildings or other structures, encouraging new projects in already developed areas.

For any project to be excluded by the Ministerial Exclusion Order, the entire project must be described by a class of projects and meet all applicable class-specific and general limiting conditions. A project cannot be split into component parts for the purposes of getting excluded from an environmental effects determination, and the scope of a project and its environmental effects determination should be made in light of all reasonably foreseeable components of the project, across the lifecycle of the project. As the Ministerial Exclusion Order lists classes of projects that will cause only insignificant adverse environmental effects – and the additions include only routine, straightforward, and low-risk projects — the potential for significant cumulative effects is very limited. Also, authorities should work together to identify and mitigate any potential cumulative effects that may result if multiple projects occur in the same area.

Authorities subject to the provisions of sections 81 to 91 of the IAA operate within broader mandates and legislative authorities. Projects on federal lands are carried out in a way that is consistent with the context of those legislative authorities, and are subject to appropriate management and planning regimes, which may further address any potential for cumulative effects.

General conditions

The Ministerial Exclusion Order includes general conditions that apply to all classes of projects listed in the schedules. The general conditions ensure that authorities are only excluded from section 82 or 83 obligations if projects meet certain additional criteria.

The general limiting conditions on water have been adjusted to allow very selective low-risk activities in or near water bodies, while ensuring excluded projects cause only insignificant adverse environmental effects. However, projects remain ineligible for exclusion if

These general limiting conditions work together with multiple class-specific limiting conditions to ensure that only minimal interaction with water bodies could be allowed for an excluded project.

Other changes to the general conditions are administrative. They include updating a reference to the Fisheries Act (which was amended after the publication of the existing Designated Classes of Projects Order), updating the limiting condition about migratory birds and nests to align with the Migratory Birds Regulations, 2022 (which came into force after the publication of the Designated Classes of Projects Order) and removing the condition for projects within national wildlife areas, which are now managed through Schedule 3.

Schedule 1 — Excluded classes of projects (outside Canada or on federal lands not administered by the Parks Canada Agency and not within national wildlife areas)

This schedule excludes the classes of projects that are to be carried out on federal lands, other than lands administered by Parks Canada or within national wildlife areas, and on lands outside Canada. The classes of projects in this schedule include minor projects such as the operation, maintenance and repair of an existing physical work and physical activities within the interior of a building. This schedule also includes classes for certain physical activities (e.g. construction, replacement, decommissioning) in respect of minor physical works including small buildings, structures related to buildings, utility infrastructure, and small above ground petroleum tank systems.

Changes to Schedule 1 include both new classes of projects, and minor adjustments to existing classes.

New classes
Changes to existing classes and conditions

Schedule 2 — Excluded classes of projects (on federal lands administered by the Parks Canada Agency)

This schedule excludes classes of projects that are to be carried out on lands administered by Parks Canada. The classes of projects in this schedule include minor projects such as the operation or maintenance of a physical work or physical activities that are contained within the interior of a building. This schedule also includes classes for certain physical activities (e.g. construction, replacement, decommissioning) in respect of physical works including rudimentary campsites, trails, electrical transmission lines, and water-related works like shoreline stabilization structures and wharves. Changes to Schedule 2 include both new classes of projects, and minor adjustments to existing classes.

New classes
Changes to existing classes

Schedule 3 — Excluded classes of projects (on federal lands within national wildlife areas)

This new schedule excludes classes of projects that are to be carried out within national wildlife areas, administered by Environment and Climate Change Canada. The classes in Schedule 3 are a subset of the lowest-risk classes in Schedule 1. Many of the classes in this schedule are subject to additional limiting conditions. These classes include

Regulatory development

Consultation

In August of 2019, the Ministerial Exclusion Order came into force, incorporating extensive input from authorities, Indigenous groups, stakeholders, and members of the public. At the time, the IAAC deferred considering many projects that had been proposed by authorities, requiring more information and time to analyze their environmental effects. Since 2019, the IAAC has received extensive comments and feedback consisting of proposed changes to the existing classes and suggestions for new classes. Targeted consultation on changing the Ministerial Exclusion Order was conducted since 2020 with federal authorities and airport authorities, as the stakeholder groups most affected by any changes. The intent of this approach was to limit the potential for new exclusions by focusing only on projects of interest to authorities.

Initial input — 2020–2021

In the winter of 2020–2021, the IAAC solicited proposals from authorities for changes to the Ministerial Exclusion Order. Authorities were notified through a working group meeting and through an email distribution list.

The IAAC requested that authorities only submit proposals meeting the first set of screening criteria listed in the Description section of this document. Authorities were asked to characterize any adverse environmental effects and describe effective and established mitigation measures. Proposals were only considered if the mitigation measures were a part of standard design, and if they reduced the adverse environmental effects to the point of being insignificant or absent.

The IAAC received over 100 proposals for additional classes and changes to existing classes, from 20 authorities. Primary areas of focus for authorities included

The IAAC then completed a detailed review of each proposal in 2021 and 2022; this process is also summarized in the Description section above. During this time, the IAAC engaged with authorities as needed to refine and validate the environmental effects, and to scope each class of projects (e.g. adjusting limiting conditions or thresholds).

Preliminary consultation with authorities — 2022–2023

In summer 2022, the IAAC shared a discussion paper with authorities that outlined the preliminary proposal for changes to the Ministerial Exclusion Order, including the rationale and the approach for their inclusion. Authorities were notified by email and through a virtual workshop, advising them of the opportunity to provide feedback on the proposals. Authorities were provided with 2 months (60 days) to provide written submissions.

During this preliminary consultation period, the IAAC met bilaterally with 7 authorities. The IAAC received detailed submissions from 24 authorities.

No major concerns were raised during consultations about the proposed changes in the discussion paper. Authorities were supportive of the proposed new classes and changes to the general conditions. They emphasized their desire to avoid the administrative burden associated with making a determination for projects that will cause only insignificant adverse environmental effects. Feedback included the following:

Following receipt of written submissions, the IAAC continued to work with authorities to resolve their concerns. Modifications were made to the proposal to ensure that all projects excluded by classes in the Ministerial Exclusion Order will cause only insignificant adverse environmental effects, and to limit the potential for cumulative effects. Minor changes were also made to the proposal to improve clarity and consistency across project classes.

Prepublication in the Canada Gazette, Part I

The changes were prepublished in the Canada Gazette, Part I, on July 27, 2024, followed by a 75-day public comment period. The IAAC held 21 meetings to discuss the changes and received written submissions from 45 Indigenous groups, industry stakeholders, non-governmental organizations, and individuals. The following sections provide a summary of the issues raised during the Canada Gazette, Part I, public comment period and the actions taken by the IAAC to address those issues. Input on the proposed changes to the Ministerial Exclusion Order generally fell into the following themes:

Cumulative effects

Many Indigenous groups, environmental non-governmental organizations, and individuals expressed concern that changes to the Ministerial Exclusion Order would result in fewer projects undergoing an environmental effects determination, and that even if individual projects cause insignificant adverse environmental effects, the combination of multiple projects may result in cumulative effects that are not insignificant. Commenters requested more information about how the IAAC considered cumulative effects in analyzing and determining the changes to the Ministerial Exclusion Order, and raised the following specific concerns about the changes to the Ministerial Exclusion Order:

Response

In response to the comments expressed, additional information about how cumulative effects were considered has been added to the Description section of this document. For example, as outlined in that section, project splitting cannot be undertaken to avoid an environmental effects determination, projects are ineligible for exclusion when they are in certain sensitive areas or change important ecosystem components, and the Ministerial Exclusion Order is designed to discourage new developments in undeveloped and other sensitive areas.

The IAAC will continue to engage with authorities to share best practices on the consideration of cumulative effects in environmental effects determinations and will encourage authorities to work collaboratively with other authorities carrying out projects in a given area to identify and mitigate possible cumulative effects in the course of project planning.

The IAA requires that it be clear to an authority whether a project is part of a class of projects in the Ministerial Exclusion Order; this is made possible by using clear project categories, quantitative thresholds, and easy to follow limiting conditions. It is not possible to abandon the use of quantitative thresholds as only the Minister may determine classes of projects cause only insignificant adverse environmental effects. If the Ministerial Exclusion Order were to instead use qualitative thresholds, that determination would be delegated to each authority, which is not possible under the IAA.

The obligation to conduct an environmental effects determination applies to most projects on federal lands or outside Canada unless the project is part of a class in the Ministerial Exclusion Order. Without the Ministerial Exclusion Order, authorities would have to evaluate thousands of simple activities with no or negligible environmental effects each year, like installing a small shed, replacing a bench, or painting a building. The Ministerial Exclusion Order enables government resources to be directed to where there is greater value.

New classes of projects

Many Indigenous groups expressed concern that the changes to the Ministerial Exclusion Order would result in fewer projects undergoing an environmental effects determination under the IAA, and consequently that there would be fewer opportunities to provide input to projects on federal lands. They also expressed concern that the methods used to review and screen changes to the Ministerial Exclusion Order did not sufficiently account for impacts to Indigenous peoples and their rights, as they were not involved in the development of the screening and evaluation criteria. A few Indigenous groups expressed support for many of the proposed changes.

Multiple Indigenous groups and environmental non-governmental organizations asked for greater transparency with regard to the methods and analyses used to determine whether the new classes of projects met the requirement, set out in section 88 of the IAA, that projects in that class would cause only insignificant adverse environmental effects.

Commenters also shared concerns about the following changes:

Industry stakeholders were supportive of the proposed changes to the Ministerial Exclusion Order, and suggested further changes that would allow a greater number of projects to proceed without an environmental effects determination. Recommendations included:

Response

The classes of projects added to the Ministerial Exclusion Order are routine and low-risk, carrying the potential for only insignificant adverse environmental effects. Despite the changes to the Ministerial Exclusion Order, authorities are required to identify and engage with affected Indigenous groups, and are encouraged to engage with stakeholders and other individuals to determine the best way to undertake their projects. Other environmental review processes continue to apply. For example, for projects taking place on First Nation reserves, while a determination under the IAA will not be required for projects under the Ministerial Exclusion Order, Indigenous Services Canada environment specialists can work with interested First Nations to develop and provide standard mitigation measures and best practices. Part of Indigenous Services Canada’s environmental review process is to help alleviate communities’ concerns on projects. In addition, authorities still have to meet treaty obligations and fulfill the duty to consult and, where appropriate, accommodate Indigenous peoples when they enable projects that might adversely impact potential or established Indigenous rights or treaty rights.

In response to the concerns about the methods the IAAC used to review and screen proposed changes to the Ministerial Exclusion Order, additional detail about the IAAC’s methods have been provided in the Description and Consultation sections of this document. Consideration of impacts to Indigenous peoples was embedded throughout the analysis of the proposed changes to the Ministerial Exclusion Order. The IAA defines environmental effects as “changes to the environment and the impact of these changes on the Indigenous peoples of Canada and on health, social or economic conditions” (section 81). Therefore, all impacts to Indigenous peoples caused by those environmental effects had to be insignificant in order for a change to be considered.

With respect to the general limiting conditions about water, which have been adjusted to allow very selective low-risk activities in or near water bodies, the IAAC carefully considered this matter, given the importance of protecting water resources. Multiple elements of the Ministerial Exclusion Order ensure only small, low-risk works with limited interaction with water may be excluded. For example, the general limiting conditions do not allow exclusions for any project that causes the death of any fish or the harmful alteration of fish habitat, or that causes a change to any species at risk (including aquatic species), the water level of a water body, alignment of a water course, or any characteristic of a wetland. The classes pertaining to projects in or near water have additional limiting conditions that exclude only the lowest-risk projects. These conditions prevent projects from being excluded if they involve placing any fill in a water body; disturbing any subsurface contamination; using vehicles or heavy machinery on the substrate of a water body; or using explosives. In addition, new in-water projects are limited to a very small size threshold (10 m2) and must not involve placing legs or piles in the substrate of a water body.

In response to the feedback received during the prepublication comment period, the IAAC adjusted the classes for lengthening roads and railways (which are already limited to no more than 100 m), so that they may only take place on already developed land; and restored the condition that projects within historic canals and national marine conservation areas require an environmental effects determination if they involve a permanent increase to the footprint below the high-water mark.

Regarding requests for additional exclusions, the ability to list classes of projects on the Ministerial Exclusion Order is strictly limited: the Minister may only list classes of projects if the carrying out of such a project will cause only insignificant adverse environmental effects. After careful consideration, the IAAC determined that the recommendations were not consistent with the requirement that projects cause only insignificant adverse environmental effects. Therefore, the proposed changes were not made. Additionally, the Minister’s determination that projects will cause only insignificant adverse environmental effects cannot be deferred or delegated. This means, for example, that the Minister cannot exclude projects on the basis that they may have a net environmental benefit, as this would ultimately be determined by authorities based on the characteristics of individual projects and how environmental effects are managed.

Projects on contaminated sites

Commenters expressed mixed support for the changes to the subsurface contamination condition, which appears throughout the Ministerial Exclusion Order and prevents the exclusion of projects if there is known or suspected contamination, unless the project is located on a site listed as closed in the FCSI. Some commenters voiced concern about excluding projects on FCSI sites that have been closed with risk-management measures, as these sites must be carefully managed to contain on-site contamination.

Response

The IAAC held additional meetings with Environment and Climate Change Canada (as the FCSI lead) and with other federal authorities to further understand the FCSI program and the potential for adverse environmental effects for projects located on closed, risk-managed sites. In discussion with Environment and Climate Change Canada, the condition was amended to ensure that projects are not eligible for the exclusion if located on closed FCSI sites with risk-management measures. Projects remain eligible for the exclusion if located on other closed FCSI sites.

Environmental effects determinations process

Multiple Indigenous groups and environmental non-governmental organizations shared broader concerns regarding the environmental effects determinations process (sections 82 and 83) under the IAA. These groups commented that project postings made by authorities on the Registry do not contain enough information to support authorities’ determinations or to describe applied mitigation measures. Commenters also shared concerns that no federal lands projects on the Registry have been determined to have significant adverse environmental effects.

Indigenous groups inquired as to how impacts to Indigenous peoples and Indigenous rights are considered in environmental effects determinations, including how authorities identify who should be consulted in the determination process. Indigenous groups noted that capacity constraints limit their ability to actively monitor and participate in consultation opportunities posted to the Registry. Indigenous groups also indicated that there should be ongoing monitoring of federal lands projects after Registry postings are completed. Additionally, one Indigenous group recommended creating an Order (under section 87 of the IAA) to designate physical activities that cause significant adverse environmental effects and that would be subject to an environmental effects determination (sections 82 and 83).

Response

The objective of prepublishing in the Canada Gazette, Part I, was to inform and solicit feedback from Indigenous Peoples, stakeholders and the public on the proposed changes to the Ministerial Exclusion Order, which only lists projects for which authorities are excluded from making an environmental effects determination. Where an environmental effects determination is required, changes to the process to make that determination would require changes to the IAA and are out of scope for this regulatory initiative. Authorities are also responsible for their determination processes and while the IAAC does not have an oversight role on those determinations, the IAAC will continue to work with authorities to enhance the transparency of project postings on the Registry and to promote awareness about best practices regarding engagement with Indigenous Peoples.

Changes to the Ministerial Exclusion Order

Further to the comments received, the following changes to the Ministerial Exclusion Order were made:

The Ministerial Exclusion Order remains otherwise unchanged from prepublication.

Modern treaty obligations and Indigenous engagement and consultation

There are currently 35 modern treaties and self-government agreements across the country, of which several have provisions related to environmental, impact or development assessment processes. The application of federal environmental assessment legislation is very limited for over half of the treaties, especially in the territories.

An assessment of modern treaty implications, made in accordance with the Cabinet Directive on the Federal Approach to Modern Treaty Implementation, identified some implications to modern treaty obligations related directly to the changes to the Ministerial Exclusion Order. The new classes of projects being added to the Ministerial Exclusion Order will be excluded from IAA requirements; therefore, there will be no opportunity through the IAA for modern treaty beneficiaries to comment on the potential environmental effects of those projects on federal lands within their treaty territories, or the potential impacts to their rights. However, given that the changes to the Ministerial Exclusion Order include only classes of projects with insignificant adverse environmental effects, the changes are not expected to have implications or raise concerns in respect of modern treaty obligations. Authorities still have to meet the treaty obligations and fulfill the duty to consult and, where appropriate, accommodate Indigenous peoples when they enable projects that might adversely impact potential or established Indigenous rights or treaty rights. Moreover, modern treaties and self-government environmental, impact or development assessment processes continue to apply.

Indigenous self-governments also manage federal lands: there are currently three groups with self-government agreements relevant to the federal lands provisions of the IAA, and more in the negotiation process. The impact of the changes to the Ministerial Exclusion Order on those groups is likely to be minor. In some cases, the environmental assessment laws of the Indigenous governments may be more restrictive, and may apply to some projects that will be excluded from the IAA by the changes to the Ministerial Exclusion Order.

The IAA also includes a general clause (section 3) to ensure that any existing treaty rights are not affected by the IAA itself, nor its supporting regulations and policy:

During the initial development of the Ministerial Exclusion Order in 2019, the IAAC prepared a consultation paper and individually notified each modern treaty and self-governing group and offered to meet with them. The IAAC received two submissions from modern treaty groups: the First Nations of the Maa-nulth Treaty Society and the James Bay Advisory Committee on the Environment. Their feedback included recommending where certain exclusions should apply, considerations for which projects should be excluded, and the timelines for commenting on the regulatory proposal. More information about their feedback is provided in the Regulatory Impact Analysis Statement for the Designated Classes of Projects Order (SOR/2019-323). The IAAC targeted engagement with modern treaty groups in alignment with the prepublication of this latest regulatory proposal in the Canada Gazette, Part I, to ensure that they had the opportunity to comment, and that the IAAC is in compliance with modern treaty obligations. The IAAC provided funding through its Policy Dialogue Program to 38 Indigenous groups to comment on this regulatory proposal, and also received submissions from additional unfunded groups. Feedback from Indigenous groups is summarized in the Regulatory development section, above. During prepublication, the IAAC received written comments from one modern treaty group, the Manitoba MĂ©tis Federation (MMF), and met with one modern treaty group, the Cree Nation Government, who inquired about the applicability of the federal lands provisions of the IAA on their lands. The Cree Nation Government did not provide comments as the federal lands requirements under the IAA do not apply to their “Category 1A” lands. The MMF opposed the change to the general limiting condition about water and expressed concerns about the potential for cumulative effects as well as impacts to their rights that may occur from excluded projects. The IAAC’s responses to these issues are described in the Prepublication section, above.

Instrument choice

Changes to the Ministerial Exclusion Order were required to increase the number of excluded classes of projects. Other instrument types would be inconsistent with the legislative scheme. Subsection 88(1) of the IAA specifies that the Minister may, by order, designate a class of projects that are not subject to the requirements under sections 82 and 83.

Regulatory analysis

Benefits and costs

The cost-benefit analysis assesses the difference between the baseline and regulatory scenarios.

The baseline scenario reflects the requirements of the IAA absent the changes to the Ministerial Exclusion Order. Under this scenario, a large number of projects would be subject to the requirements under sections 81 to 91 of the IAA. Each year since the coming into force of the IAA, approximately 3 000 projects on federal lands or outside of Canada are excluded from the requirements under sections 81 to 91 of the IAA, while approximately 1 000 are assessed and posted to the Registry. Among the latter subset of projects, some are part of classes of projects that are low-risk, routine, and cause only insignificant adverse environmental effects. These classes of projects would not have been captured without the changes to the Ministerial Exclusion Order.

The baseline scenario would pose an administrative cost to authorities by requiring assessments for these low-risk, routine projects with the potential for only insignificant adverse environmental effects, causing delays to operational continuity and service delivery. These delays would be disproportionate to any potential environmental effects, and assessments of these projects provide no added value to the Canadian public.

The regulatory scenario represents the requirements under the IAA with the changes to the Ministerial Exclusion Order in force. The changes to the Ministerial Exclusion Order add over 50 new classes of projects, alter many existing classes of projects (e.g. by increasing thresholds and excluding certain physical activities), and modify the general conditions. Overall, the changes to the Ministerial Exclusion Order will result in fewer projects on federal lands and outside Canada being subject to the IAA. This reduces the administrative burden on authorities, benefiting those authorities, and the Canadian public. Increasing the number of classes of projects that have the potential for only insignificant adverse environmental effects in the Ministerial Exclusion Order ensures that government and other resources are directed towards assessing proposals with greater potential for adverse environmental effects. The changes to the Ministerial Exclusion Order are also expected to benefit third parties that operate on federal lands, including businesses, by minimizing delays related to decisions about their projects. There are no incremental costs associated with the changes to the Ministerial Exclusion Order.

Small business lens

The small business lens does not apply as there are no incremental costs resulting from the changes to the Ministerial Exclusion Order.

One-for-one rule

The one-for-one rule does not apply as there are no administrative burden costs resulting from the changes to the Ministerial Exclusion Order.

Regulatory cooperation and alignment

The changes to the Ministerial Exclusion Order do not have implications for alignment with other jurisdictions as the Ministerial Exclusion Order applies only on federal lands and does not introduce any new regulatory requirements.

Effects on the environment

In accordance with the Cabinet Directive on Strategic Environmental and Economic Assessment, a preliminary screening concluded that a strategic environmental and economic assessment was not required for the changes to the Ministerial Exclusion Order.

The changes to the Ministerial Exclusion Order add new classes of projects that, alongside class-specific and general conditions, only cause insignificant adverse environmental effects. The IAAC completed a preliminary screening using the Climate, Nature and Economy Lens to consider the impacts of the changes on climate change (mitigation, adaptation, and resilience), biodiversity, other components of the environment, and the economy. The results of the preliminary screening are that the changes to the Ministerial Exclusion Order are not expected to have impacts on the environment and the economy.

Gender-based analysis plus

No impacts based on gender and other identity factors have been identified for the changes to the Ministerial Exclusion Order.

While the addition of new excluded classes of projects will reduce engagement opportunities on projects, including for women, Indigenous peoples, and other vulnerable groups, only routine and low-risk projects with the potential for only insignificant adverse environmental effects were included in the changes to the Ministerial Exclusion Order. Under section 81 of the IAA, “environmental effects” means changes to the environment and the impact of these changes on the Indigenous peoples of Canada and on health, social, or economic conditions. Based on this definition and the results of the gender-based analysis plus (GBA+), it is expected that excluding projects with only insignificant adverse environmental effects from the requirements of the IAA will have no GBA+ impact.

Implementation, compliance and enforcement, and service standards

Implementation

The Order Designating Certain Excluded Classes of Projects came into force on the day on which it was registered.

Authorities will be informed of the proposed regulatory changes through regular communication tools, such as updates to the IAAC website, by email through the IAAC Federal Lands distribution list, and through Federal Lands Working Group meetings, which includes representatives from authorities.

Further guidance will be developed relating to projects on federal lands and outside of Canada to assist authorities in interpreting the Ministerial Exclusion Order and in understanding their obligations under the IAA.

Compliance and enforcement

There are no compliance and enforcement strategies related to the Ministerial Exclusion Order, as the classes of projects that are excluded by the Ministerial Exclusion Order are not subject to the IAA.

Service standards

There are no service standards associated with the Ministerial Exclusion Order.

Contact

Sarah Jackson
Director
Legislative and Regulatory Affairs Division
Impact Assessment Agency of Canada
Email: regulations-reglements@iaac-aeic.gc.ca